Jones v. Esurance Insurance Company

Filing 40

ORDER granting 29 Motion in Limine. By Judge Christine M. Arguello on 04/18/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00278-CMA-KLM
ERIC C. JONES,
Plaintiff,
v.
ESURANCE INSURANCE COMPANY,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE
TO EXCLUDE EVIDENCE OF COLLATERAL SOURCE WORKERS’
COMPENSATION BENEFITS AT TRIAL (DOC. # 29)
This matter is before the Court on Plaintiff’s Motion in Limine to Exclude
Evidence of Collateral Source Workers’ Compensation Benefits at Trial. (Doc. # 29.)
Plaintiff Eric Jones seeks to exclude from trial evidence that he received workers’
compensation benefits. Defendant Esurance Insurance Company opposes Plaintiff’s
motion. (Doc. # 33.) For the reasons that follow, Plaintiff’s motion is granted.
I. BACKGROUND
On June 30, 2013, Plaintiff was injured in a motor vehicle accident. (Doc. # 2 at
3.) Because the accident occurred while Plaintiff was acting within the scope of his
employment, he recovered medical expenses, wages, and other benefits through
workers’ compensation. (Doc. # 29 at 2.) Plaintiff also sought payment of underinsured
motorist (UIM) benefits under an insurance policy issued to him by Defendant. The
issue presented to the Court by Plaintiff’s motion in limine is whether Defendant may

introduce at trial evidence of Plaintiff’s recovery of workers’ compensation benefits to
support the argument that Plaintiff’s potential recovery of UIM benefits should be
reduced or “offset” by the amount that he received from workers’ compensation. The
parties have indicated that resolution of this question will assist in ongoing settlement
negotiations.
II. ANALYSIS
Under Colorado’s collateral source rule, a jury’s damages award in a tort action is
generally offset by any collateral source payments received by the plaintiff. Colo. Rev.
Stat. § 13-21-111.6. There is, however, a contract exception that precludes offsets for
collateral source payments made pursuant to a contract entered into by the party
seeking further compensation. Id.; Colo. Permanente Grp. v. Evans, 926 P.2d 1218,
1233 (Colo. 1996). Plaintiff’s motion argues that the Court should exclude evidence
relating to the existence of the workers’ compensation insurer, as well as the benefits
that he received, because those benefits fall under the contract exception to the
collateral source rule. (Doc. # 29 at 8 (citing Combined Commc’ns Corps., Inc. v. Pub.
Serv. Co. of Colo., 865 P.2d 893, 902 (Colo. App. 1993) (“[I]t is clear that . . . workers'
compensation benefits were received as a result of the employees' contracts of hire.
Hence, the verdicts were not subject to being set off by the amounts of these benefits
[pursuant to Colorado’s collateral source rule].”)).)
In response, Defendant argues that it is entitled to reduce the amount of
Plaintiff’s UIM benefits by the amount that he already received from his workers’
compensation insurer and, therefore, evidence of Plaintiff’s workers’ compensation
coverage is admissible at trial. In support of this argument, Defendant first asserts that
its UIM policy explicitly prohibits any workers’ compensation insurer from having a
2

subrogated interest against it “to try to recoup the workers’ compensation benefits paid.”
(Doc. # 33 at 4.) Defendant asserts that “[t]his policy language is consistent with
Colorado law which prohibits a workers’ compensation insurer from asserting a
subrogation interest against an underinsured motorist insurer.” (Doc. # 33 at 4.)
Second, Defendant argues that Plaintiff’s UIM policy explicitly prohibits the payment of
UIM benefits for “any element of damages” that is already covered by workers’
compensation. (Doc. # 33 at 6.)
On March 29, 2016, the Tenth Circuit issued an opinion that squarely addressed
the issue presented by Plaintiff’s motion in limine. Adamscheck v. Am. Family Mut. Ins.
Co., --- F.3d ---, 2016 WL 1211965 (10th Cir. Mar. 29, 2016). In Adamscheck, the
Tenth Circuit framed the question presented as “whether [the plaintiff’s] UIM benefits
should be offset by the amounts he received in workers’ compensation benefits for
losses resulting from the same accident.” Id. at *4.
Like Defendant here, the defendant in Adamscheck argued that a provision in the
policy explicitly stated that UIM benefits would not be paid to cover losses already paid
for by workers’ compensation. Id. Citing Nationwide Mutual Insurance Co. v. Hillyer,
509 P.2d 810 (Colo. App. 1973), the Tenth Circuit stated that such a provision is
“contrary to Colorado law.” Id. at *5. In Hillyer, the Colorado Court of Appeals “adopted
the position of those courts that ‘prohibit a casualty insurance carrier from reducing its
liability to a victim of an uninsured motorist by the amount of any workmen’s
compensation award.’” Id. The Tenth Circuit further found that “[b]ecause the Colorado
Supreme Court has not had occasion to reach this issue,” it would “consider the

3

pronouncement from the Colorado Court of Appeals [in Hillyer] persuasive of how the
Colorado Supreme Court might rule.” Id.
The Tenth Circuit in Adamscheck also rejected the defendant’s argument that
“Colorado’s collateral source rule, Colo. Rev. Stat. § 13-21-111.6, requires an offset for
[the plaintiff’s] workers’ compensation benefits.” Id. at *6. In rejecting this argument,
the Tenth Circuit relied on Combined Communications Corporation, Inc. v. Public
Service Company of Colorado, 865 P.2d 893 (Colo. App. 1993), which held that
workers’ compensation benefits are received as a result of an employee’s contract with
its employer and, therefore, fall within the contract exception to the collateral source
rule. Id.
Following the Tenth Circuit’s issuance of Adamscheck, Defendant filed a notice
of supplemental authority to bring the opinion to the Court’s attention. (Doc. # 39.)
Defendant argues that Adamscheck is distinguishable, however, because it did not
address certain arguments raised in Defendant’s response to Plaintiff’s motion in limine.
(Doc. # 39 at 2.) Defendant asserts that, in Adamscheck, the parties did not raise, and
the Tenth Circuit did not address, whether the workers’ compensation insurer had a
subrogation claim against the UIM insurer. (Doc. # 39 at 2.) In addition, Defendant
argues that, because “Plaintiff’s workers’ compensation carrier has already paid
Plaintiff’s medical expenses and certain wage loss benefits[,] . . . payment of these
benefits a second time directly to Plaintiff (and without a concomitant right of
subrogation by the workers’ compensation carrier) would amount to double recovery
and an impermissible windfall to the Plaintiff above and beyond what his net recovery

4

would have been in a third party tort claim against the at-fault driver.” (Doc. # 39 at 23.)
In its opinion in Adamscheck, the Tenth Circuit explicitly noted that, prior to
seeking benefits under his UIM coverage, the plaintiff had “received workers’
compensation benefits for his injuries.” Adamscheck, 2016 WL 1211965, at *1. The
Tenth Circuit also noted that the defendant had argued in a summary judgment motion
before the trial court “that Colorado law allows insurers to prohibit double recovery for
losses already covered by workers’ compensation, and that [the plaintiff’s] policy
included such limiting provisions.” Adamscheck, 2016 WL 1211965, at *2. The
defendant had also argued “that under Colorado’s UIM statute, ‘a Plaintiff would not be
legally entitled to recover duplicate damages from a tortfeasor.’” Id. The district court
rejected these arguments. Id.
The Tenth Circuit reviewed the issue de novo. Id. at *4. As stated above, the
Tenth Circuit relied on Hillyer to find that the policy provision excluding recovery of UIM
benefits for amounts already received from workers’ compensation was “contrary to
Colorado law.” Id. at *5. The Tenth Circuit also found that Colorado’s collateral source
rule was “not implicated” because “the Colorado Court of Appeals has held that workers’
compensation benefits are received as a result of an employee’s contract with its
employer and therefore fall within th[e] express [contract] exception.” Id. at *6 (citing
Combined Commc’ns Corp., 865 P.2d at 902). Summarizing its holding, the Tenth
Circuit stated, “we hold that under Colorado law, [the defendant] was not entitled to an
offset for the amount [the plaintiff] received from workers’ compensation.” Id. at *8.

5

Despite Defendant’s assertions to the contrary, the Court finds that Adamscheck
decides the matter currently before it. The underlying facts are identical in that both
cases involve a UIM insurer seeking to exclude from its payment of benefits to an
insured the amount that the insured had already received from workers’ compensation.
The Court does not believe that Adamscheck is rendered inapplicable by its failure to
explicitly address whether the workers’ compensation insurer had a subrogation claim
against the UIM insurer. If, as Defendant represents, Colorado law prohibits a workers’
compensation insurer from asserting a subrogation interest against an UIM insurer, the
workers’ compensation insurer in Adamscheck, like Plaintiff’s workers’ compensation
insurer here, did not have a subrogation claim. Despite this lack of a subrogation claim,
the Tenth Circuit concluded that the defendant could not reduce the amount of the
plaintiff’s UIM benefits. Therefore, the Court rejects Defendant’s argument that
Adamscheck does not apply here.
In light of Adamscheck, the Court finds that Defendant cannot reduce the amount
of Plaintiff’s UIM benefits by the amount that Plaintiff already received from workers’
compensation. Therefore, it would be improper for Defendant to introduce at trial
evidence concerning Plaintiff’s previously received workers’ compensation benefits.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s Motion in Limine to Exclude Evidence of Collateral
Source Workers’ Compensation Benefits at Trial (Doc. # 29) is GRANTED. Defendant
is prohibited from introducing or commenting on the existence of Plaintiff’s workers’
compensation benefits, as well as any associated payments of bills and/or benefits or
any contractual write-offs or discounts due to that coverage.
6

DATED: April 18, 2016

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

7